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Libel Standard

From the media's standpoint, Indiana has one of the strongest frameworks for Freedom of Speech in libel cases.

In 1999, the Indiana Supreme Court decided in a 3-2 decision to apply the U.S. Supreme Court's New York Times v. Sullivan, 376 U.S. 967 (1964) standard for public officials to meet to be successful in a libel case to not only public officials but private individual involved in matters of public interest.

In Indiana, such a plaintiff must show the defamatory falsehood was made with "actual malice" or "reckless disregard for the truth." The split decision was handed down in Journal Gazette Co. Inc. v. Bandido's Inc. 712 N.E.2d 446 ( Ind. 1999).

In that case, a restaurant owner whose business had been temporarily shut down by the county health department which found numerous violations during an inspection filed a libel lawsuit in 1989 against the Fort Wayne Journal Gazette. The newspaper had written an accurate story about the restaurant's inspection failure, but made an error in the headline.

The headline indicated the inspection found evidence of rats in the restaurant. The inspection actually found rodent droppings. The headline writer equated rodent with rat without realizing that rodent also included mice.

A jury had awarded the restaurant owner $985,000 during a trial in Noble Circuit Court. The largest previous libel award in Indiana was under $70,000.

The question before the Indiana Supreme Court was whether the standard in libel cases involving private individuals should be reckless disregard for the truth or a lesser standard, such as negligence, which a majority of states selected.

The actual malice standard had been originally set by the Indiana Court of Appeals in Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 321 N.E.2d 580 (1974), cert. denied, 424 U.S. 913 (1975), with the decision based on Indiana's Bill of Rights.

In a 46-page opinion, Justice Sullivan (Justice Selby concurred) relied on the federal decision in New York Times v. Sullivan. In addition to maintaining the actual malice standard, Sullivan ruled that appellate courts may independently review evidence to determine whether the proper verdict had been reached at trial level. The decision said it was important to assure that libel decisions were based on the law and not anti-press feelings among the jury.

Justice Boehm agreed with Sullivan's ruling, but based his vote on the Indiana Constitution's prohibition of any law "restricting the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely on any subject whatever" while providing that the person be "responsible" only for the "abuse" of those rights.

Boehm felt "abuse" indicated the need for actual malice as an appropriate test. Boehm did not agree though with Sullivan that an independent review of the evidence in a libel case was appropriate.

Unanswered by the case was the standard when a private individual brings a libel action in a matter not of public concern or interest. The possibility also exists that independent review at the appellate level could disappear.

What is libel?

Libel occurs when an individual is defamed in print. Defamation is material that tends to expose one to public hatred, contempt or ridicule or which induces an ill opinion of the person or entity in the minds of the community.

There is defamation per se:accusing someone of having a loathsome disease, of sexual impropriety, of committing a crime, or being unfit to conduct one's business. There also is defamation per quod: an accusation that may be innocent of its face, but have a defamatory quality to it.

In addition to the constitutional privilege created by the U.S. Supreme Court in the New York Times v. Sullivan case, several common law privileges are recognized. They include:

Reporting on judicial, legislative and other public and official proceeding;

Reporting the contents of public records; and

Printing comment or opinion that concerns matters of public interest.

Of course, truth always remains a defense against a libel lawsuit. (IC 34-15-1-2)

Retraction statute

Indiana has retraction statutes that allow media entities to restrict the damages that can be awarded against them in a libel lawsuit.

IC 34-15-4-2 requires a plaintiff to serve notice on a newspaper or news service of the factual statements in the article that are false and defamatory and correct the falsity by pointing out the true facts prior to the filing of a lawsuit. The notice must be given at least four to 11 days depending upon whether the defendant is a news service, daily or weekly newspaper. IC 34-15-3-3 contains a similar provision for radio and television broadcasters and allows ten days for the retraction to be issued.

The required notice gives the media entity the opportunity to issue a retraction within a specified time frame after receiving the notice from the potential plaintiff. If done properly, the retraction serves to limit the plaintiff to recovery of only actual damages if a lawsuit is subsequently filed.

The statute of limitations on filing a libel action is two years from the offending publication. (IC 34-11-2-4)